Who Owns ‘We Shall Overcome’?

Martin Luther King Jr. joins hands with clergymen during the singing of "We Shall Overcome" at a rally in Selma, Alabama, in March 1965.AP

Can anyone claim possession of “We Shall Overcome”? Is it property of the civil-rights movement? Does it belong to the union workers who first sang the song as we know it? Is it simply a piece of universal American patrimony, the composition the Library of Congress labeled “the most powerful song of the 20th century”? In today’s era, when the song is heard not just in the United States but abroad, is it a shared global inheritance?

These are rhetorical questions, but there’s also a legal answer: Music publishers the Richmond Organization, or TRO, and Ludlow Music own the copyright to the anthem. And now a nonprofit called the We Shall Overcome Foundation is seeking to overturn that copyright and put the song in the public domain, arguing that the copyright is not valid or at the very least is far narrower than its publishers have claimed.

The instant comparison many observers are drawing is to “Happy Birthday,” the familiar song whose copyright was thrown out in September. The lawyers who won that case are now working on this one. But if the “We Shall Overcome” case is less immediately buzzy—not everyone is serenaded with the anthem once a year, and its owners don’t have the same reputation for litigiousness—it is also a more historically, musically, and morally intriguing situation.

The first problem in determining who owns the copyright to the song is determining who wrote it—and as I wrote last year, that’s a much more complicated question than with “Happy Birthday.” In the latter case, there’s little dispute that Mildred and Patty Hill wrote the song; the question was when they wrote it, and when the copyright should expire. “We Shall Overcome,” however, is a palimpsest. The first layer comes as early as 1792, when the hymn tune “Sicilian Mariners” was first published. Its first few measures are unmistakably similar to “We Shall Overcome.” (Beethoven wrote a setting of the tune.)

The first, rather distant, version of the words originates in 1901 with the hymn “I’ll Overcome Some Day,” written by a well-known black Philadelphia minister named Charles Albert Tindley. While the tune isn’t much like “Sicilian Mariners” and the verses are far more elaborate, the AABA refrain is the template for the modern song.

After that, the path is harder to follow. In the lawsuit challenging the copyright, the plaintiffs note a reference to “that good old song, ‘We Will Overcome’” in a 1909 edition of the United Mine Workers Journal, which they present as evidence that the song was already well-known. The first widely acknowledged performance of the modern song was at a 1945 cigar-workers’ strike in Charleston, South Carolina. Where the workers learned the song, and how long it had been around, is unclear, but the labor organizer and musician Zilphia Horton first learned it from two of them.*

Horton taught the song to Pete Seeger. The famed folksinger is generally credited with changing the pivotal first line from “We will overcome” to “We shall overcome,” though he was never sure he deserved credit. Seeger later met a younger folksinger named Guy Carawan and encouraged him to visit the Highland Folk School, where Carawan learned “We Shall Overcome” from Zilphia Horton. In 1960, Carawan was at the founding convention of the Student Nonviolent Coordinating Committee in Raleigh, North Carolina, when he was asked to lead a song. He picked “We Shall Overcome,” and it became an immediate hit.

From SNCC, the song spread to the rest of the civil-rights movement. Martin Luther King Jr. quoted it in a speech in February 1965. The following month, when he signed the Voting Rights Act, President Lyndon Johnson also quoted the opening lines. King would go on to mention it in his final sermon before he was murdered. It’s now a standard at practically any protest, with a melody that’s easy to sing and a structure—thanks to its repetition and adaptability with call-and-response leadership—making it flexible for almost any cause.

In 1960, Seeger, Horton, Carawan, and Frank Hamilton copyrighted the song as a “derivative work”—they weren’t claiming original authorship, but instead that they had somehow altered the traditional tune. The U.S. Copyright Office notes that “to be copyrightable, a derivative work must incorporate some or all of a preexisting ‘work’ and add new original copyrightable authorship to that work,” and it cites new arrangements of preexisting musical works as a common example.

And that’s where the We Shall Overcome Foundation comes in. The group is the work of Isaias Gamboa, a musician and producer who says it does social-welfare work—from working with ex-offenders in Los Angeles to homeless Children in Brazil. According to the complaint, the suit began when the organization wanted to use the song in a film:

But Gamboa explained the longer backstory in an interview. An erstwhile bandmate told him long ago that his grandmother had written “We Shall Overcome” but hadn’t gotten credit for it. Gamboa was uninterested at the time, but later became fascinated and set out to prove that the woman, Louise Shropshire, was the real author. He first wrote a book and then he set out to make a documentary—the film for which the publishers declined permission. Along the way, he met a producer of the 2013 Lee Daniels film The Butler, who told him that TRO had sought a six-figure payment for the use of “We Shall Overcome” in the movie. The two sides had eventually agreed on a three-second clip that Gamboa says cost $16,000. When Gamboa sought permission to use the song in his documentary, permission was refused, with no cost quoted.

WSOF’s site includes a long, multicolored, and multifonted version of Gamboa’s argument that what we think we know about “We Shall Overcome” is wrong and has “BEEN DELIBERATELY HIDDEN FROM THE WORLD FOR 56 YEARS.” The site lays the alternative theory that Shropshire, a friend of Martin Luther King’s, wrote a hymn called “If My Jesus Wills”: “Unbeknownst to Mrs. Shropshire, in 1960 Pete Seeger and four other folk singers copyrighted ‘We Shall Overcome’ as a derivative work, claiming no known original author. Unbeknownst to Pete Seeger and his associates, Louise Shropshire copyrighted ‘If My Jesus Wills’ in 1954.”

WSOF has posted videos with Shropshire’s song:

As with many such cases, the resemblance is in the ear of the beholder. To me, there’s some similarity, but I’m not convinced it’s the missing link between the historical antecedents and the present-day song. Lyrically, it might easily be another descendant of Tindley’s turn-of-the-century hymn. The song is somewhat melodically similar to the familiar “We Shall Overcome,” but it’s in a narrower range of notes and with a somewhat different chord progression than the Carawan/Seeger version, and farther from “Sicilian Mariners.”

The case against “We Shall Overcome”’s publishers reveals some of the folly of trying to copyright a folk song. What people like Seeger treasured about the folk tradition was the way that songs could be passed down from generation to generation, picking up bits and pieces, losing others, and gradually changing over time. A folk song is a living thing, and therefore it’s very hard to set it in stone, as a copyright seeks to do. “We Shall Overcome” was repeatedly published in leftist outlets with slightly different words, or with verses added or subtracted. Sometimes there was a copyright notice included, and sometimes there was not. This sort of behavior is natural if you believe “We Shall Overcome” is a folk song. But it’s risky if you’re trying to maintain a copyright over the song.

With that in mind, it’s worth going back to the reason Seeger, Caraway, Horton, and Hamilton copyrighted the song in the first place. Seeger wrote in his autobiography that it was a defensive copyright—they wanted to prevent anyone else from copyrighting a traditional black song and then profiteering from it. They directed the proceeds to fund art and activism in African American communities. Ironically, backers of the Shropshire theory now feel that the copyright is being used to take a black woman’s work and, by denying use, wall it off from use by black people.

Given their motives for copyrighting the song, perhaps Seeger and Carawan would support putting the song in the public domain. But Horton was already dead when the copyright was filed, and Seeger died in 2014 and Carawan in 2015, so there’s no way to ask them. Gamboa told me he interviewed Seeger before his death, for an interview that will be in the documentary, and that Seeger had heard out Gamboa’s case for Shropshire’s authorship. “There was a moment of epiphany with him, where he said, ‘Well, I’ll be darned,’” he recalled. Gamboa said he didn’t think Seeger had any intention of making the song into a major moneymaker, but added that TRO’s custody of the song is unjust. (TRO has not been answering questions about the suit.)

In any case, there is one crucial figure missing from WSOF’s lawsuit: Louise Shropshire.

“I wanted to make sure that people don’t confuse the two things,” Gamboa told me. “This is not a copyright-infringement suit. Louise Shropshire’s role in the history of the song is documented, but we felt this was a time to really remove the song from the hands of the people that have been claiming copyright.”

Still, the lawsuit risks a Pyrrhic victory. The complaint lays out a history of “We Shall Overcome” that ratifies much of the accepted narrative of the song—running from the United Mine Workers Journal to the Charleston cigar strike, and from there to Zilphia Horton, Pete Seeger, and Guy Carawan. That story doesn’t leave much space for any alternative history with Louise Shropshire as author. If it wins the case, the We Shall Overcome Foundation might find itself with the right to use “We Shall Overcome,” but not much of a story to tell.

*Correction: This article originally stated that Zilphia Horton learned “We Shall Overcome” in Charleston. We regret the error.